Wall v. Moore

Wall v. Moore  (96-448); 167 Vt. 580; 704 A.2d 775

[Filed 24-Oct-1997]


                          ENTRY ORDER

                 SUPREME COURT DOCKET NO. 96-448

                       SEPTEMBER TERM, 1997


Janice M. Wall                  }     APPEALED FROM:
                                }
                                }
     v.                         }     Windham Family Court
                                }
Steven A. Moore                 }
                                }     DOCKET NO. F67-1-95WmDmd


       In the above-entitled cause, the Clerk will enter:

       Defendant Steven A. Moore appeals the Windham Family Court's order
  dividing the marital property and debts in a final divorce decree.  He
  further appeals the trial court's decision not to award him spousal
  maintenance, and claims that gender bias motivated the court's decision, in
  violation of the Equal Protection clauses of the United States and Vermont
  Constitutions.  We affirm.

       Plaintiff and defendant were married for the last four years of their
  fifteen year relationship, which ended in a divorce in 1996.  In issuing a
  final decree of divorce, the court distributed all marital assets of the
  parties, including a stock portfolio which defendant had obtained through a
  family inheritance, and all debts.  Prior to distribution, defendant cashed
  a substantial portion of the stocks in the portfolio in violation of a
  court order freezing all assets.

       Defendant first argues that the court committed error in awarding an
  unfair proportion of the marital assets to plaintiff.  He contends that the
  trial court erred in considering the entire length of the relationship for
  distribution purposes and in considering his inherited stock portfolio as a
  marital asset to be distributed.

       15 V.S.A. § 751 governs the distribution of property in a divorce,
  setting out twelve factors the court "may consider," and requires the court
  to "equitably divide and assign the property."  See Semprebon v. Semprebon,
  157 Vt. 209, 215, 596 A.2d 361, 364 (1991).  "The trial court has broad
  discretion in considering these factors, and its decision will be upheld
  unless its discretion was abused, withheld, or exercised on grounds clearly
  untenable."  Id.  The court is not required to delineate the weight given
  to each factor, it is merely required to give a clear statement of what was
  decided and why.  Jakab v. Jakab, 163 Vt. 575, 585, 664 A.2d 261, 267
  (1995).

       While 15 V.S.A. § 751(b) authorizes the court to consider, among other
  factors, the length of the marriage, and the origin of the stock portfolio,
  neither of these considerations is dispositive.  See Kingsbury v.
  Kingsbury, 147 Vt. 625, 626, 523 A.2d 1246, 1247 (1987) (weight to be
  assigned to statutory factors is within trial court's discretion).  Nor are
  the statutory factors exclusive.  Thus, we see no error in considering the
  entire length of the couple's relationship in the distribution of marital
  assets where the court concluded that equity demanded this approach. 
  Although the trial court recognized defendant's non-monetary contributions,
  it found that plaintiff had provided the majority of the couple's financial
  support during the years before the couple married.  Under this reasoning,
  the court felt it would be unfair to consider only the four years in which
  the couple was legally married for purposes of

 

  asset distribution.

       Nor was it error to consider defendant's inherited stock portfolio as
  a marital asset to be distributed between the parties.  All property owned
  by either or both of the parties, regardless of how or when acquired, is
  subject to the jurisdiction of the court.  15 V.S.A. § 751(a). Further, the
  court could continue to consider the stock portfolio to be a marital asset
  to be distributed even though defendant had transferred the stock in
  violation of the court's order.  See Clayton v. Clayton, 153 Vt. 138,
  143-45, 569 A.2d 1077, 1079-80 (1989); White v. White, 133 Vt. 614, 616-17,
  349 A.2d 894, 896 (1975).  Given the circumstances, it was clearly within
  the court's discretion to assign this asset to defendant.

       Defendant also claims that it was error for the court to charge him
  with the tax consequences of liquidating the stocks.  Defendant overlooks
  the fact that had he not chosen to cash in the stocks, in violation of the
  court order, no tax liability would have ensued.  Again, the court's action
  was within its discretion.

       Defendant also asserts that the trial court erred in its calculation
  of the equity of the marital premises.  He points to a home equity loan
  that plaintiff incurred which he claims should not be considered in valuing
  the equity in the home and further argues that the home furnishings were
  undervalued.  The proceeds of the home equity loan were used for repair and
  modification of the home.  In the absence of credible evidence to the
  contrary, the court acted within its discretion to conclude that the value
  of the home was increased by the cost of the repairs and modifications that
  were supported by the loan proceeds.  Whether or not defendant was
  responsible for the loan, the court acted properly in determining that
  evaluation of the home as a marital asset had to consider the increased
  value as well as the debt that brought about the increase in value.

       Regarding the valuation of the home furnishings, the court used the
  figure plaintiff provided in her affidavit of income and assets rather than
  defendant's unsubstantiated estimate of the property's value.  Where no
  outside experts are used, the court must rely on the testimony of the
  parties who own the property, and the court is fully within its discretion
  to choose one of the parties' estimates over the other.  Wood v. Wood, 143
  Vt. 113, 119, 465 A.2d 250, 253 (1983).  There is no error in the
  valuation.

       We also note, with respect to defendant's maintenance claim, the broad
  discretion of the trial court.  See Clapp v. Clapp, 163 Vt. 15, 20, 653 A.2d 72, 75 (1994).  Here, the court found that the claim failed to meet
  the standards of 15 V.S.A. § 752(a), which authorizes an award of spousal
  maintenance if the court finds that the spouse seeking maintenance cannot
  "provide for his or her reasonable needs, . . . and is unable to support
  himself or herself through appropriate employment at the standard of living
  established during the marriage or is the custodian of a child of the
  parties."  The trial court deemed spousal maintenance inappropriate because
  the standard of living presently enjoyed by both parties exceeds that which
  they experienced during the majority of the marriage and because there is
  no significant disparity in earning potential between them.  We affirm this
  conclusion within the discretion of the court.

       Finally, defendant argues that the divorce order is the result of
  gender bias, and, as a result, denies him equal protection of the law. 
  Since we conclude that the order was well within the court's discretion,
  and see no evidence of gender bias, we reject defendant's claim without
  reaching whether its theory of a constitutional violation is valid.  See In
  Re Wildlife Wonderland, Inc., 133 Vt. 507, 520, 346 A.2d 645, 653 (1975)
  (Court does not consider

 


  constitutional arguments unless disposition of case requires it).


       Affirmed.




                              BY THE COURT:



                              _______________________________________
                              Jeffrey L. Amestoy, Chief Justice

                              _______________________________________
                              John A. Dooley, Associate Justice

                              _______________________________________
                              James L. Morse, Associate Justice

                              _______________________________________
                              Denise R. Johnson, Associate Justice

                              _______________________________________
                              Marilyn R. Skoglund, Associate Justice